The Freedom of Information (Scotland) Act 2002 (
FOISA)
provides a statutory right of access to information held by
Scottish public authorities.

The provisions of the Act can be extended to bodies that carry
out functions of a public nature or which provide, under a contract
with a Scottish public authority, a service which is a function of
that authority. This can be done by making an order under section 5
of the Act, which designates those bodies as a Scottish public
authority for the purposes of the Act.

Background

Between June and September 2015 the Scottish Government
consulted on extending coverage of
FOISA
to:

contractors who run privately-managed prisons

providers of secure accommodation for children

grant-aided schools, and

independent special schools

The Scope of the
EQIA

Consultation invited comments on the proposals in terms of how
they may impact on any particular equalities group, including in
respect of age, gender, race, religion, disability and
sexuality.

In addition to all the organisations affected by the proposals
the consultation paper was circulated to equality issue
representative organisations. These included Age Scotland, Children
First Scotland, Inclusion Scotland, Capability Scotland, Engender,
Interfaith Scotland and the Scottish Transgender Alliance.

Key Findings

Few consultation responses commented on the specific '
EQIA' related
question (no responses were received from the various equality
representative bodies).

Where comment was made this was favourable towards the proposals
in so far as they were perceived to impact on certain equality
groups (or at least the 'client' group specific to organisations
proposed for inclusion, for example, children, prisoners, or the
disabled).

A common theme among those responding to this question was one
of equity and fairness in respect of access to information being
dependent on the service provider - and how, given the current
proposals, this would impact on various 'client' groups.

For example, one response noted that the proposals were likely
to impact to a greater extent on children, young people (and
adults) with a disability but that this would probably be a benefit
to these groups as it would give them greater powers to obtain
information.

The same respondent also commented that prisoners in private
prisons were currently disadvantaged compared to those in public
prisons. This point was mirrored in the response from the Prison
Reform Trust who noted that, as people from disadvantaged groups
were often over represented in prisons and secure settings, any
measure that supported transparency and accountability of services
to these groups was to be welcomed.

In other responses, the Care Inspectorate considered that the
proposals would have a positive impact providing more openness and
transparency on public expenditure for services which covered
people of all protected characteristics. The Scottish Information
Commissioner also believed that coverage would remove or mitigate
existing inequalities.

John Mason
MSP
commented that while the starting point of
FoI was to
benefit all members of the public, this in particular applied to
disadvantaged groups who may have difficulty proving that they were
being discriminated against or otherwise disadvantaged. Mr Mason
therefore considered that equalities groups would be likely to
benefit from increased coverage of
FoI.

Finally, we also note the response from Unison which cited the
Special Report produced by the Scottish Information Commissioner,
quoting:

'Access to information is also fundamental to the concepts and
aims of equality; whether to enable someone to exert their human
rights effectively, or to challenge the fairness of public
services. To demand fair and equitable services, people need to
know the standards they can expect and have the evidence to
demonstrate the extent to which they are being met.'

Recommendations and Conclusion

While few responses made reference to issues of equality, we
thank those which did - and agree with the overall sentiment
expressed that the proposals will improve equity and fairness,
particularly for client groups disadvantaged due simply to the
specific provider of a certain service, for example, prisoners in a
private prison or disabled children in an independent special
school.

We propose to formally review the impact of this order once it
has been in force for a year. As far as we are able, we would
intend to include in this review process an assessment of
requesters - and the extent that those requesting information from
the organisations brought within scope of
FOISA
are from particular equality groups. The review would also allow us
to consider whether adequate assistance and guidance is available
to those from the various equality groups to make effective
information requests.

Consultation on 'Time for Compliance
Regulations'

In March 2016, the Scottish Parliament agreed that the Freedom
of Information (Scotland) Act 2002 should be extended to, among
others, grant-aided and independent special schools.

However, following earlier consultation and the comments
received from affected schools on the administrative impact of
responding to information requests during school holiday periods,
it was decided to also consult on regulations varying the
timescales to respond to information requests and reviews.

The proposed 'Time for Compliance Regulations' would require a
response to an information request, or request for review, within
20 working days but disregarding any working day which is not also
a school day. A response must still be issued no later than the
60th working day following the date of receipt of an information
request (or request for a review).

The proposals are specific to grant-aided and independent
special schools. Consultation took place between March and May 2016
- the consultation paper inviting comments on equality related
impacts arising from the proposals and which would be reflected in
an updated
EQIA.

A small number of consultation responses make reference to
equality issues. The Children and Young People's Commissioner
Scotland considered that the greater flexibility would impact on
vulnerable children and young people. The Campaign for Freedom of
Information Scotland requested that further consideration of the
impact of the proposal on the rights of disabled children and their
families/carers, be undertaken.

We note the concerns of both organisations and would emphasise
that the overriding intention behind this latest extension of
coverage of
FOISA
is to increase access to information rights (previously, requestors
had no
FOI rights in
requesting information from grant-aided and independent special
schools). Once
FOISA
is extended to these schools, the Act will apply in full, enhancing
information rights.

We consider that the proposed Regulations are, in practice,
likely to affect only a small proportion of information requests.
In the absence of available data about those making information
requests (the basis of the legislation being that requests are
'requestor blind') it is not possible to categorically assess
whether any particular equality group (over and above any other
individual or organisation also wishing to make a request) would be
unduly affected by the more flexible response timescales.

The Regulations are intended to enable those schools coming
within scope of
FOISA
to meet their legal obligations - rather than acting as a barrier
preventing access to information from anyone making a request.
However, to mitigate against any undue delay in responses, we
intend to revise the Section 60 Code of Practice to emphasise the
requirement to respond 'promptly' and that, if staff are available
during holiday periods, it would be good practice to process
requests even if the Regulations apply.

As noted above, we propose to review the impact of the order
extending coverage of
FOISA
to various organisations, including grant-aided and independent
special schools, after one year. As part of this review we would
assess any specific impact of the proposed Time for Compliance
Regulations. A key part of the exercise will be to assess the
impact on equality groups of both the order extending coverage of
FOISA
and the Regulations allowing variation in the timescales for
response.